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Exhibit 3.16
BY-LAWS
of
WERNER FINANCIAL INC.
(A Delaware corporation)
Amended and Restated May 14, 1997
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INDEX
BY-LAWS
ARTICLE I
STOCKHOLDERS ............................ 1
Section 1.01. Annual Meetings .......................................... 1
Section 1.02. Special Meetings ......................................... 1
Section 1.03. Notice of Annual and Special Meetings .................... 1
Section 1.04. Quorum ................................................... 1
Section 1.05. Voting ................................................... 2
Section 1.06. Procedure at Stockholders' Meetings ...................... 2
Section 1.07. Action Without Meeting ................................... 2
ARTICLE II
DIRECTORS .............................. 2
Section 2.01. Number, Election and Term of Office ...................... 2
Section 2.02. Chairman of the Board .................................... 3
Section 2.03. Annual Meeting ........................................... 3
Section 2.04. Regular Meetings ......................................... 3
Section 2.05. Special Meetings ......................................... 3
Section 2.06. Notice of Annual and Special Meetings .................... 3
Section 2.07. Quorum and Manner of Acting .............................. 3
Section 2.08. Action Without Meeting ................................... 4
Section 2.09. Participation by Conference Telephone .................... 4
Section 2.10. Resignations ............................................. 4
Section 2.11. Removal of Directors ..................................... 4
Section 2.12. Vacancies ................................................ 4
Section 2.13. Compensation of Directors ................................ 4
Section 2.14. Committees ............................................... 4
Section 2.15. Personal Liability of Directors .......................... 5
ARTICLE III
OFFICERS AND EMPLOYEES ....................... 5
Section 3.01. Executive Officers ....................................... 5
Section 3.02. Additional Officers; Other Agents and Employees .......... 5
Section 3.03. The President ............................................ 5
Section 3.04. The Vice Presidents ...................................... 5
Section 3.05. The Secretary and Assistant Secretaries .................. 6
Section 3.06. The Treasurer and Assistant Treasurers ................... 6
Section 3.07. Vacancies ................................................ 6
Section 3.08. Delegation of Duties ..................................... 6
Section 3.09. Personal Liability of Officers, Employees and Agents ..... 6
ARTICLE IV
SHARES OF CAPITAL STOCK ....................... 7
Section 4.01. Share Certificates ....................................... 7
Section 4.02. Transfer of Shares ....................................... 7
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Section 4.03. Transfer Agents and Registrars ........................... 7
Section 4.04. Lost, Stolen, Destroyed or Mutilated Certificates ........ 7
Section 4.05. Regulations Relating to Shares ........................... 7
Section 4.06. Holders of Record ........................................ 7
Section 4.07. Fixing of Record Date .................................... 8
ARTICLE V
LOANS, NOTES, CHECKS,
CONTRACTS AND OTHER INSTRUMENTS ................... 8
Section 5.01. Notes, Checks, etc. ...................................... 8
Section 5.02. Execution of Instruments Generally ....................... 8
Section 5.03. Proxies in Respect of Stock or Other Securities or Other
Corporations ......................................... 8
ARTICLE VI
GENERAL PROVISIONS ......................... 9
Section 6.01. Offices .................................................. 9
Section 6.02. Corporate Seal ........................................... 9
Section 6.03. Fiscal Year .............................................. 9
ARTICLE VII
VALIDATION OF CERTAIN CONTRACTS ................... 9
ARTICLE VIII
INDEMNIFICATION OF DIRECTORS AND OFFICERS .............. 9
ARTICLE IX
AMENDMENTS ............................. 10
INDEX
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WERNER FINANCIAL INC.
By-Laws
ARTICLE I
STOCKHOLDERS
SECTION 1.01. ANNUAL MEETINGS. Annual meetings of the stockholders
shall be held at such place, either within or without the State of Delaware,
and at such time and date as the Board of Directors shall determine and as set
forth in the notice of the meeting.
SECTION 1.02. SPECIAL MEETINGS. Special meetings of the stockholders
may be called at any time, for the purpose or purposes set forth in the call,
by the Chairman of the Board, the President, the Board of Directors or the
holders of at least one-fifth of all the shares outstanding and entitled to
vote thereat, by delivering a written request to the Secretary. At any time,
upon the written request of any person or persons who have duly called a
special meeting, it shall be the duty of the Secretary to fix the date of the
meetings, to be held not more than 75 days after receipt of the request, and to
give due notice thereof. Special meetings shall be held at such place, either
within or without the State of Delaware, and at such time and date as the Board
of Directors shall determine and as set forth in the notice of the meeting.
SECTION 1.03. NOTICE OF ANNUAL AND SPECIAL MEETINGS. Except as
otherwise expressly required by law, notice of each meeting of stockholders,
whether annual or special, shall be given at least 5 and not more than 60 days
prior to the date on which the meeting is to be held to each stockholder of
record entitled to vote thereat by delivery of a notice thereof to him
personally or by sending a copy thereof through the mail or by
telecommunication equipment, charges prepaid, to his address appearing on the
records of the Corporation. Each such notice shall specify the place, day and
hour of the meeting and, in the case of a special meeting, shall briefly state
the purpose or purposes for which the meeting is called. A written waiver of
notice, signed by the person or persons entitled to such notice, whether before
or after the date and time fixed for the meeting shall be deemed the equivalent
of such notice. Neither the business to be transacted at nor the purpose of the
meeting need be specified in a waiver of notice of such meeting.
SECTION 1.04. QUORUM. A stockholders' meeting duly called shall not be
organized for the transaction of business unless a quorum is present. At any
meeting the presence in person or by proxy of stockholder entitled to cast at
least a majority of the votes which all stockholders are entitled to cast on
the particular matter shall constitute a quorum for the purpose of considering
such matter, except as otherwise expressly provided by law or by the
Certificate of Incorporation or By-Laws of the Corporation. The stockholders
present at a duly organized meeting can continue to do business until
adjournment, notwithstanding the withdrawal of enough stockholders to leave
less than a quorum. If a meeting cannot be organized because a quorum has not
attended, those present may adjourn the meeting from time to time to such time
(not more than 30 days after the next previous adjourned meeting) and place as
they may determine, without notice other than by announcement at the meeting of
the time and place of the adjourned meeting; and in the case of any meeting
called for the election of directors, those who attend the second of such
adjourned meetings, although entitled to cast less than a majority of the votes
entitled to be cast on any matter to be considered at the meeting, shall
nevertheless constitute a quorum for the purpose of electing directors.
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SECTION 1.05. VOTING. At every meeting of stockholders, each holder of
record of issued and outstanding stock of the Corporation entitled to vote at
such meeting shall be entitled to vote in person or by proxy and, except where
a date has been fixed as the record date for the determination of stockholders
entitled to notice of or to vote at such meeting, no holder of record of a
share of stock which has been transferred on the books of the Corporation
within 10 days next preceding the date of such meeting shall be entitled to
notice of or to vote at such meeting in respect of such share so transferred.
Resolutions of the stockholders shall be adopted, and any action of the
stockholders at a meeting upon any matter shall be taken and be valid, only if
at least a majority of the votes cast with respect to such resolutions or
matter are cast in favor thereof, except as otherwise expressly provided by law
or by the Certificate of Incorporation or By-Laws of the Corporation. The
Chairman of the Board (if one has been elected and is present) shall be
chairman, and the Secretary (if present) shall act as secretary, at all
meetings of the stockholders. In the absence of the Chairman of the Board, the
President shall be chairman; and in the absence of both of them, the chairman
shall be designated by the Board of Directors or if not so designated shall be
elected by the stockholders present; and in the absence of the Secretary, an
Assistant Secretary shall act as secretary of the meeting.
SECTION 1.06. PROCEDURE AT STOCKHOLDERS' MEETINGS. The organization of
each meeting of the stockholders, the order of business thereat and all matters
relating to the manner of conducting the meetings shall be determined by the
chairman of the meeting, whose decisions may be overruled only by majority vote
(which shall not be by ballot) of the stockholders present and entitled to vote
at the meeting in person or by proxy. Meetings shall be conducted in a manner
designed to accomplish the business of the meeting in a prompt and orderly
fashion and to be fair and equitable to all stockholders, but it shall not be
necessary to follow Roberts' Rules of Order or any other manual of
parliamentary procedure.
SECTION 1.07. ACTION WITHOUT MEETING. Any action required or permitted
to be taken at any annual or special meeting of stockholders, or any action
which may be taken at any annual or special meeting, may be taken without a
meeting, without prior notice and without a vote, if a consent in writing,
setting forth the action so taken, shall be signed by the holders of
outstanding stock having not less than the minimum number of votes that would
be necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted, and such written consent is
filed with the minutes of proceedings of the stockholders. Prompt notice of the
taking of the corporate action without a meeting by less than unanimous written
consent shall be given to those stockholders who have not consented in writing.
ARTICLE II
DIRECTORS
SECTION 2.01. NUMBER. ELECTION AND TERM OF OFFICE. The number of
directors which shall constitute the full Board of Directors shall be
determined by resolution of the board of directors or by the stockholders at
the annual meeting provided, however, that in no event shall the number of
directors be less than three or more than eleven. Each director shall hold
office for the term for which he is elected and thereafter until his successor
is duly elected or until his prior death, resignation or removal. Directors
need not be stockholders.
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SECTION 2.02. CHAIRMAN OF THE BOARD. The Board of Directors shall
elect a Chairman of the Board. The Chairman when present shall preside at all
meetings of the shareholders and of the Board of Directors.
SECTION 2.03. ANNUAL MEETING. Annual Meetings of the Board of
Directors shall be held each year at the same place as and immediately after
the annual meeting of stockholders, or at such other place and time as shall
theretofore have been determined by the Board. At its regular annual meeting,
the Board of Directors shall organize itself and elect the officers of the
Corporation for the ensuing year, and may transact any other business.
SECTION 2.04. REGULAR MEETINGS. Regular meetings of the Board of
Directors may be held at such intervals and at such time and place as shall
from time to time be determined by the Board. After there has been such
determination and notice thereof has been once given to each person then a
member of the Board of Directors, regular meetings may be held at such
intervals and time and place without further notice being given.
SECTION 2.05. SPECIAL MEETINGS. Special meetings of the Board of
Directors may be called at any time by the Board, by the Chairman of the Board,
by the President or by any two directors to be held on such day and at such
time and place as shall be specified by the person or persons calling the
meeting.
SECTION 2.06. NOTICE OF ANNUAL AND SPECIAL MEETINGS. Except as
otherwise expressly required by law, notice of the annual meeting of the Board
of Directors need not be given. Except as otherwise expressly required by law,
notice of every special meeting of the Board of Directors specifying the place,
date and time thereof shall be given to each director either by being mailed on
at least the third day prior to the date of the meeting or by being sent by
telecommunications equipment or given personally or by telephone at least 24
hours prior to the time of the meeting. A written waiver of notice of a special
meeting, signed by the person or persons entitled to such notice, whether
before or after the date and time stated therein fixed for the meeting, shall
be deemed the equivalent of such notice, and attendance of a director at a
meeting shall constitute a waiver of notice of such meeting except when the
director attends the meeting for the express purpose of objecting, when he
enters the meeting, to the transaction of any business because the meeting is
not lawfully called or convened. Neither the business to be transacted at nor
the purpose of the meeting need be specified in a waiver of notice of such
meeting.
SECTION 2.07. QUORUM AND MANNER OF ACTING. At all meetings of the
Board of Directors, except as otherwise expressly provided by law or by the
Certificate of Incorporation or By-Laws of the Corporation, the presence of a
majority of the full Board shall be necessary and sufficient to constitute a
quorum for the transaction of business. If a quorum is not present at any
meeting, the meeting may be adjourned from time to time by a majority of the
directors present until a quorum as aforesaid shall be present, but notice of
the time and place to which such a meeting is adjourned shall be given to any
directors not present either by being sent by telecommunications equipment or
given personally or by telephone at least 8 hours prior to the date of
reconvening. Resolutions of the Board of Directors shall be adopted, and any
action of the Board at a meeting upon any matter shall be taken and be valid,
only with the affirmative vote of at least a majority of the directors present
at the meeting, except as otherwise provided herein. The Chairman of the Board
(if one has been elected and is present) shall be chairman, and the Secretary
(if present) shall act as secretary, at all meetings of the Board. In the
absence of the Chairman of the Board, the President shall be chairman, and in
the absence of both of them the directors present shall select a member of the
Board of Directors to be chairman; and in the absence of the Secretary and
Assistant Secretary, the chairman of the meeting shall designate any person to
act as secretary of the meeting.
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SECTION 2.08. ACTION WITHOUT MEETING. Any action required or permitted
to be taken at any meeting of the Board of Directors or of any committee
thereof may be taken without a meeting if a consent in writing, setting forth
the actions so taken, shall be signed by all members of the Board or such
committees, as the case may be, and such written consent is filed with the
minutes of the Board or committee.
SECTION 2.09. PARTICIPATION BY CONFERENCE TELEPHONE. Members of the
Board of Directors of the Corporation, or any committee designated by the
Board, may participate in a meeting of the Board or committee by means of
conference telephone or similar communications equipment by which all persons
participating in the meeting can hear each other, and participation in a
meeting by such means shall constitute presence in person at such meeting.
SECTION 2.10. RESIGNATIONS. A director may resign by submitting his
written resignation to the Chairman of the Board (if one has been elected) or
the Secretary. Unless otherwise specified therein, the resignation of a
director need not be accepted to make it effective and shall be effective
immediately upon its receipt by such officer or as otherwise specified therein.
If the resignation of a director specifies that it shall be effective at some
time later than receipt, until that time the resigning director shall be
competent to act on all matters before the Board of Directors, including
filling the vacancy caused by such resignation.
SECTION 2.11. REMOVAL OF DIRECTORS. The entire Board of Directors or
any individual director may be removed at any time for cause or without cause
by the holders of a majority of the shares then entitled to vote at an election
of directors. The vacancy or vacancies caused in the Board of Directors by such
removal may but need not be filled by such stockholders at the same meeting or
at a special meeting of the stockholders called for that purpose.
SECTION 2.12. VACANCIES. Any vacancy that shall occur in the Board of
Directors by reason of death, resignation, removal, increase in the number of
directors or any other cause whatever shall, unless filled as provided in
Section 2.11 of this Article II, be filled by a majority of the then members of
the Board, whether or not a quorum, and each person so elected shall be a
director until he or his successor is elected by the stockholders at a meeting
called for the purpose of electing directors, or until his prior death,
resignation or removal.
SECTION 2.13. COMPENSATION OF DIRECTORS. The Corporation may allow
compensation to its directors for their services, as determined from time to
time by resolution adopted by the Board of Directors.
SECTION 2.14. COMMITTEES. The Board of Directors may, by resolution
adopted by a majority of the full Board, designate one or more committees
consisting of directors to have and exercise such authority of the Board in the
management of the business and affairs of the Corporation as the resolution of
the Board creating such committee may specify and as is otherwise permitted by
law. The Board of Directors may designate one or more directors as alternate
members of any committee, who may replace any absent or disqualified member at
any meeting of the committee. In the absence or disqualification of any member
of such committee or committees, the member or members thereof present at any
meeting and not disqualified from voting, whether or not he or they constitute
a quorum, may unanimously appoint another director to act at the meeting in the
place of such absent or disqualified member.
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SECTION 2.15. PERSONAL LIABILITY OF DIRECTORS.
(a) To the fullest extent that the laws of the State of Delaware, as
the same exist or may hereafter be amended, permit elimination of the personal
liability of directors, no director of this Corporation shall be personally
liable to this Corporation or its stockholders for monetary damages for breach
of fiduciary duty as a director.
(b) The provisions of this Section 2.15 shall be deemed to be a
contract with each director of this Corporation who serves as such at any time
while this Section 2.15 is in effect, and each such director shall be deemed to
be serving as such in reliance on the provisions of this Section 2.15. Any
amendment or repeal of this Section 2.15 or adoption of any By-Law of this
Corporation or other provision of the Certificate of Incorporation of this
Corporation which has the effect of increasing director liability shall operate
prospectively only and shall not affect any action taken, or any failure to
act, by a director of this Corporation prior to such amendment, repeal, By-Law
or other provision becoming effective.
ARTICLE III
OFFICERS AND EMPLOYEES
SECTION 3.01. EXECUTIVE OFFICERS. The Executive Officers of the
Corporation shall be the President, a Secretary and a Treasurer, and may
include one or more Vice Presidents as the Board of Directors may from time to
time determine, all of whom shall be elected by the Board of Directors. Any two
or more offices may be held by the same person. Each Executive Officer shall
hold office until the next succeeding annual meeting of the Board of Directors
and thereafter until his successor is duly elected and qualifies, or until his
earlier death, resignation or removal.
SECTION 3.02. ADDITIONAL OFFICERS; OTHER AGENTS AND EMPLOYEES. The
Board of Directors may from time to time appoint or hire such additional
officers, assistant officers, agents, employees and independent contractors as
the Board deems advisable; and the Board or the President shall prescribe their
duties, conditions of employment and compensation. Subject to the power of the
Board of Directors, the President may employ from time to time such other
agents, employees, and independent contractors as he may deem advisable for the
prompt and orderly transaction of the business of the Corporation, and he may
prescribe their duties and the conditions of their employment, fix their
compensation and dismiss them, without prejudice to their contract rights, if
any.
SECTION 3.03. THE PRESIDENT. Subject to the control of the Board of
Directors, the President shall have general policy supervision of and general
management and executive powers over all the property, business, operations and
affairs of the Corporation, and shall see that the policies and programs
adopted or approved by the Board are carried out. The President shall exercise
such further powers and duties as from time to time may be prescribed in these
By-Laws or by the Board of Directors.
SECTION 3.04. THE VICE PRESIDENTS. The Vice Presidents may be given by
resolution of the Board of Directors general executive powers, subject to the
control of the President, concerning one or more or all segments of the
operations of the Corporation. The Vice Presidents shall exercise such further
powers and duties as from time to time may be prescribed in these By-Laws or by
the Board of Directors or by the President. At the request of the President or
in his absence or disability, the senior Vice President shall exercise all the
powers and duties of the President.
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SECTION 3.05. THE SECRETARY AND ASSISTANT SECRETARIES. It shall be the
duty of the Secretary (a) to keep or cause to be kept an original or duplicate
record of the proceedings of the stockholders and the Board of Directors, and a
copy of the Certificate of Incorporation and of the By-Laws; (b) to attend to
the giving of notices of the Corporation as may be required by law or these
By-Laws; (c) to be custodian of the corporate records and of the seal of the
Corporation and see that the seal is affixed to such documents as may be
necessary or advisable; (d) to have charge of the stock books of the
Corporation, and a share register, giving the names of the stockholders in
alphabetical order, and showing their respective addresses, the number and
classes of shares held by each, the number and date of certificates issued for
the shares, and the date of cancellation of every certificate surrendered for
cancellation; and (e) to exercise all powers and duties as may be prescribed by
the Board of Directors or by the President from time to time. The Secretary by
virtue of his office shall be an Assistant Treasurer. The Assistant Secretaries
shall assist the Secretary in the performance of his duties and shall also
exercise such further powers and duties as from time to time may be assigned to
them by the Board of Directors, the President or the Secretary. At the
direction of the Secretary or in his absence or disability, an Assistant
Secretary shall perform the duties of the Secretary.
SECTION 3.06. THE TREASURER AND ASSISTANT TREASURERS. The Treasurer
shall have custody of all the funds and securities of the Corporation. He shall
collect all moneys due the Corporation and deposit such moneys to the credit of
the Corporation in such banks, trust companies, or other depositories as may
have been duly designated by the Board of Directors. He shall endorse for
collection on behalf of the Corporation checks, notes, drafts and other
documents, and may sign and deliver receipts, vouchers and releases of liens
evidencing payments made to the Corporation. Subject to Section 5.01 of these
By-Laws, he shall cause to be disbursed the funds of the Corporation by payment
in cash or by checks or drafts upon the authorized depositories of the
Corporation. He shall have charge of the books and accounts of the Corporation.
He shall perform all acts incident to the office of Treasurer and such other
duties as may be assigned to him by the Board of Directors. The Treasurer by
virtue of his office shall be an Assistant Secretary. The Assistant Treasurers
shall assist the Treasurer in the performance of his duties and shall also
exercise such further powers and duties as from time to time may be assigned to
them by the Board of Directors, the President or the Treasurer. At the
direction of the Treasurer or in his absence or disability, an Assistant
Treasurer shall perform the duties of the Treasurer.
SECTION 3.07. VACANCIES. Vacancy in any office or position by reason
of death, resignation, removal, disqualification, disability or other cause,
shall be filled in the manner provided in this Article III for regular election
or appointment to such office.
SECTION 3.08. DELEGATION OF DUTIES. The Board of Directors may in its
discretion delegate from the time being the powers and duties, or any of them,
of any officer to any other person whom it may selection.
SECTION 3.09. PERSONAL LIABILITY OF OFFICERS, EMPLOYEES AND AGENTS.
The Corporation shall indemnify its officers, employees and agents to the full
extent permitted by Section 145 of the Delaware General Corporation Law, as
amended from time to time, or any successor provision of Delaware law.
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ARTICLE IV
SHARES OF CAPITAL STOCK
SECTION 4.01. SHARE CERTIFICATES. Every holder of stock in the
Corporation shall be entitled to a certificate or certificates, to be in such
form as the Board of Directors may from time to time prescribe, signed by the
President or any Vice President and by the Treasurer or any Assistant Treasurer
or the Secretary or any Assistant Secretary. The signatures of such officers
may be facsimiles. Each such certificate shall set forth the name of the
registered holder thereof, the number and class of shares and the designation
of the series, if any, which the certificate represents. The Board of Directors
may, if it so determines, direct that certificates for shares of stock of the
Corporation be signed by a transfer agent or registered by a registrar or both,
in which case such certificates shall not be valid until so signed or
registered.
In the case of any officer of the Corporation who shall have signed,
or whose facsimile signature shall have been used on, any certificate for
shares of stock of the Corporation shall cease to be such officer, whether
because of death, resignation, removal or otherwise, before such certificate
shall have been delivered by the Corporation, such certificate shall
nevertheless be deemed to have been adopted by the Corporation and may be
issued and delivered as though the person who signed such certificate or whose
facsimile signature shall have been used thereon had not ceased to be such
officer.
SECTION 4.02. TRANSFER OF SHARES. Transfer of shares of stock of the
Corporation shall be made only on the books of the Corporation by the
registered holder thereof or by his attorney thereunto authorized by an
instrument duly executed and filed with the Corporation, and on surrender of
the certificate or certificates for such shares properly endorsed or
accompanied by properly executed stock powers and evidence of the payment of
all taxes imposed upon such transfer. Except as provided in Section 4.04 of
this Article IV, every certificate surrendered for transfer shall be canceled
and no new certificate or certificates shall be issued in exchange for any
existing certificate until such existing certificate shall have been so
cancelled .
SECTION 4.03. TRANSFER AGENTS AND REGISTRARS. The Board of Directors
may appoint any one or more qualified banks, trust companies or other
corporations organized under any law of any state of the United States or under
the laws of the United States as agent or agents for the Corporation in the
transfer of the stock of the Corporation and likewise may appoint any one or
more such qualified banks, trust companies or other corporations as registrar
or registrars of the stock of the Corporation.
SECTION 4.04. LOST, STOLEN, DESTROYED OR MUTILATED CERTIFICATES. New
certificates for shares of stock may be issued to replace certificates lost,
stolen, destroyed or mutilated upon such terms and conditions, which may but
need not include the giving of a satisfactory bond or other indemnity, as the
Board of Directors may from time to time determine.
SECTION 4.05. REGULATIONS RELATING TO SHARES. The Board of Directors
shall have power and authority to make such rules and regulations not
inconsistent with these By-Laws or with law as it may deem expedient concerning
the issue, transfer and registration of certificates representing shares of
stock of the Corporation.
SECTION 4.06. HOLDERS OF RECORD. The Corporation shall be entitled to
treat the holder of record of any share or shares of stock as the holder and
owner in fact thereof and shall not be bound to recognize any equitable or
other claim to or interest in such shares on the part of any other person,
whether
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or not it shall have express or other notice thereof, except as otherwise
expressly provided by the laws of the State of Delaware.
SECTION 4.07. FIXING OF RECORD DATE. The Board of Directors may fix a
time, not less than 10 or more than 60 days prior to the date of any meeting of
stockholders, or the date fixed for the payment of any dividend or
distribution, or the date for the allotment of rights, or the date when any
change or conversion or exchange of shares will be made or go into effect, as a
record date for the determination of the stockholders entitled to notice of, or
to vote at, any such meeting, or entitled to receive payment of any such
dividend or distribution, or to receive any such allotment of rights, or to
exercise the rights in respect to any such change, conversion or exchange of
shares. In such case, only such stockholders as shall be stockholders of record
on the date so fixed shall be entitled to notice of, or to vote at, such
meeting or to receive payment of such dividend, or to receive such allotment of
rights, or to exercise such rights, as the case may be, notwithstanding any
transfer of any shares on the books of the Corporation after any record date
fixed as aforesaid.
ARTICLE V
LOANS, NOTES, CHECKS,
CONTRACTS AND OTHER INSTRUMENTS
SECTION 5.01. NOTES, CHECKS, ETC. All notes, drafts, acceptances,
checks, endorsements (other than for deposit) and all evidences of indebtedness
of the Corporation whatsoever shall be signed by such officers or agents and
shall be subject to such requirements as to countersignature or other
conditions as the Board of Directors from time to time may designate. Facsimile
signatures on checks may be used unless prohibited by the Board of Directors.
SECTION 5.02. EXECUTION OF INSTRUMENTS GENERALLY. Except as provided
in Section 5.01 of this Article V, all contracts and other instruments
requiring execution by the Corporation may be executed and delivered by the
President, any Vice President or the Treasurer, and authority to sign any such
contracts or instruments, which may be general or confined to specific
instances, may be conferred by the Board of Directors upon any other person or
persons. Any person having authority to sign on behalf of the Corporation may
delegate, from time to time, by instrument in writing, all or any part of such
authority to any person or person if authorized so to do by Board of Directors.
SECTION 5.03. PROXIES IN RESPECT OF STOCK OR OTHER SECURITIES OR OTHER
CORPORATIONS. Unless otherwise provided by the Board of Directors, the
President may from time to time appoint an attorney or attorneys or an agent or
agents of the Corporation to exercise in the name and on behalf of the
Corporation the powers and rights which the Corporation may have as the holder
of stock or other securities in any other corporation to vote or consent in
respect of such stock or other securities, may instruct the person or persons
so appointed as to the manner of exercising such powers and rights and may
execute or cause to be executed in the name and on behalf of the Corporation
and under its corporate seal or otherwise all such written proxies or other
instruments as he may deem necessary or proper in order that the Corporation
may exercise its said powers and rights.
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ARTICLE VI
GENERAL PROVISIONS
SECTION 6.01. OFFICES. The registered office of the Corporation shall
be at 1105 North Market Street, Suite 1300, Wilmington, Delaware. The
Corporation may have other offices, within or without the State of Delaware, at
such place or places as the Board of Directors may from time to time determine
or the business of the Corporation may require.
SECTION 6.02. CORPORATE SEAL. The Board of Directors shall prescribe
the form of a suitable corporate seal, which shall contain the full name of the
Corporation and the year and state of incorporation. Such seal may be used by
causing it or a facsimile or reproduction thereof to be affixed to or placed
upon the document to be sealed.
SECTION 6.03. FISCAL YEAR. Unless otherwise determined by the Board of
Directors, the fiscal year of the Corporation shall be the calendar year.
ARTICLE VII
VALIDATION OF CERTAIN CONTRACTS
SECTION 7.01. No contract or other transaction between the Corporation
and another person shall be invalidated or otherwise adversely affected by the
fact that any one or more stockholders, directors or officers of the
Corporation -
(i) is pecuniarily or otherwise interested in, or is a stockholder,
director, officer, or member of, such other person, or
(ii) is a party to, or is in any other way pecuniarily or otherwise
interested in, the contract or other transaction, or
(iii) is in any way connected with any person pecuniarily or otherwise
interested in such contract or other transaction, provided the fact of such
interest shall be disclosed or known to the Board of Directors or the
stockholders, as the case may be, and in any action of the stockholders or of
the Board authorizing or approving any such contract or other transaction, any
and every stockholder or director may be counted in determining the existence
of a quorum with like force and effect as though he were not so interested, or
were not such a stockholder, director, member or officer, or were not such a
party, or were not so connected. Such director, stockholder or officer shall
not be liable to account to the Corporation for any profit realized by him from
or through any such contract or transaction approved or authorized as
aforesaid. As used herein, the term "person" includes a corporation,
partnership, firm, association or other legal entity.
ARTICLE VIII
INDEMNIFICATION OF DIRECTORS AND OFFICERS
SECTION 8.01. To the maximum extent provided by applicable law, no
director shall be personally liable to the Corporation or its stockholders for
monetary damages for any breach of fiduciary duty by such director as a
director. The foregoing sentence shall not eliminate or limit the liability of
a director, (i) for breach of the director's duty of loyalty of the Corporation
or its stockholders, (ii) for acts or
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omissions not in good faith or which involve intentional misconduct of a
knowing violation of law, (iii) pursuant to Section 174 of the Delaware General
Corporation Law or (iv) for any transaction from which the director derived an
improper personal benefit. No amendment to or repeal of this Article VIII shall
apply to or have any effect on the liability or alleged liability of any
director of the Corporation for or with respect to any acts or omissions of
such director occurring prior to such amendment.
Directors and officers of the Corporation shall be indemnified as of
right to the fullest extent now or hereafter permitted by law in connection
with any actual or threatened civil, criminal, administrative or investigative
action, suit or proceeding (whether brought by or in the name of the
Corporation or otherwise) arising out of their service to the Corporation or to
another organization at the request of the Corporation. Persons who are not
directors or officers of the Corporation may be similarly indemnified in
respect of such service to the extent authorized at any time by the Board of
Directors of the Corporation. The Corporation may purchase and maintain
insurance to protect itself and any such director, officer or other person
against any liability asserted against him and incurred by him in respect of
such service whether or not the Corporation would have the power to indemnify
him against such liability by law or under the provisions of this Article. The
provisions of this Article shall be applicable to actions, suits or proceedings
commenced after the adoption hereof, whether arising from acts or omissions
occurring before or after the adoption hereof, and to directors, officers and
other persons who have ceased to render such service, and shall inure to the
benefit of the heirs, executors and administrators of the directors, officers
and other persons referred to in this Article.
ARTICLE IX
AMENDMENTS
SECTION 9.01. These By-Laws may be amended, altered and repealed, and
new By-Laws may be adopted, by the stockholders or the Board of Directors of
the Corporation at any regular or special meeting. No provision of these
By-laws shall vest any property or contract right in any stockholder.
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THESE BY-LAWS WERE AMENDED AND RESTATED AT A MEETING OF THE BOARD OF
DIRECTORS ON 6/7/82, AMENDED (ART. VI) BY THE DIRECTORS ON 6/6/84,
AMENDED (ART. VI) BY THE SHAREHOLDERS ON 3/27/87, AMENDED AND RESTATED
AT THE ANNUAL MEETING OF THE SHAREHOLDERS ON MARCH 22, 1994 BY ADDING
SECTION 4 TO ARTICLE IV AND AMENDED AND RESTATED AT THE ANNUAL MEETING
OF THE BOARD OF DIRECTORS ON MARCH 11, 1997 (REVISIONS TO ARTICLES II
AND III).
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BY-LAWS
of
WERNER HOLDING CO. (PA), INC.